At the seething cauldron of post-gay-marriage panic that is Power Line, Paul Mirengoff has a theory, important enough to be expounded in not
one but
two posts. How could a court with all these Reagan-Bush appointees so disappoint Mirengoff as this one did? For one thing,
It’s commonly acknowledged that the trajectory for young men is to move to the right as they begin to assume the responsibilities of adulthood, including paying mortgages and helping to support and raise children.
But Supreme Court Justices are almost always past age 50 when they are appointed. By then, the children are, or soon will be, raised; the mortgage has, or soon will be, paid off; and the Justices are looking forward to grandchildren.
These developments shouldn’t drive anyone to the left, but I believe the aging process itself often does. Why? Because conservatism, especially conservative judging, is predicated on the absence of a certain kind of sentimentality (I say “certain kind” because there is a sense in which the main strand of conservatism is quite sentimental). It is predicated on not letting “feelings” dominate the decision-making process...
Let me see if I'm getting this: Men get more rightwing as they age, except for some of them, who grow childish-foolish and want to be nice like the Bird Lady in
Mary Poppins. But why would
lawyers, of all people, be the ones to go "sentimental"? Anyway:
The same-sex marriage opinions illustrate the point. Justice Kennedy’s opinion overflows with sentiment. It is sappy. (Kennedy’s sentiments, by the way, are in line with those of Mr. Conservative, Barry Goldwater, the classic example of a conservative who moved leftward in his advanced years).
Yeah, Goldwater's gay rights stand wasn't a
natural outgrowth of his libertarianism, it was just senile dementia... Hey, wait a minute, Goldwater was never a lawyer. Why didn't he get
more conservative?
...The Obamacare cases also were arguably influenced by age. Forget about what Justice Scalia calls the the Chief Justice’s “sommersaults of statutory interpretation.” In my view, Roberts’ opinions are really about caution. In the first case (on the individual mandate), he was at pains not to overrule the legislature. In the second (on subsidies), he was desperate not to upset the health insurance market.
Caution is an attribute associated with advanced age.
So judges and Barry Goldwater, but not other people, get liberal as they get older, but some also get cautious... This isn't really hanging together, so for his follow-up post Mirengoff hauls in some guy to spell it out: These judges who don't vote his way are just "soft," Some Guy says, partly because they "have essentially made it in life," but mainly because the evil spirit of liberalism steals upon them and drains their essence:
For virtually all my lifetime, liberalism has ruled the culture (including and importantly academia), and being a conservative just takes a lot of energy. For example, it is not only anti-male and anti-white bias that accounts for the fact that so many leftist airheads get jobs as professors; it’s that when you’re on board with the received liberal wisdom, you swim with the tide rather than against it.
Swimming against it produces harder thinking (which is one important reason conservatives like debates and more often than not win them), but it also requires a lot of energy. Sooner of later, for most people, it starts to run out.
So liberalism challenges conservatives, thereby making them mentally stronger, but also physically weaker, which is how the Court's conservatives lost the secret Feats of Strength that actually decide their cases. (Ginsburg's thin but she's wiry!)
I guess Mirengoff's beginning to despair that he'll ever get on the High Court and has decided to grace his readers with his
Scalia-grade bullshit. Or has the conservative breakdown reached the stage where they're just trying to confuse people?
